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Post-trial period contains many traps for unwary

Read rules carefully

By Alan Cooper, Virginia Lawyers Weekly – 11/16/2009

A jury has just returned a big verdict against your client. You want some time to get a transcript and to file post-trial motions.

The judge, on the other hand, wants to close the case and get it off her docket, and your adversary wants to collect the judgment as soon as possible. What do you do?

The answer, as illustrated on Nov. 5 by the Supreme Court of Virginia in Hutchins v.Talbert (VLW 009-6-096), is to read Rules 1:1, 5:5 and 5:9 and be very, very careful.

The plaintiff, 59-year-old Rita Talbert, was horribly burned during surgery to remove a diseased parathyroid gland.

The surgeon was using a cauterizing device while Talbert was receiving oxygen during the surgery. The spark from the device set fire to her face and neck.

Plaintiff’s experts contended that the hospital where the surgery occurred, the anesthesiologist and the surgeon were all negligent. The surgeon should have told the anesthesiologist to shut off the flow of oxygen when the device was being used, and the anesthesiologist should have taken that step anyway, the experts said.

The hospital and the anesthesiologist settled, but the surgeon went to trial. A jury in Alexandria returned a $4 million verdict for Talbert.

Judge Lisa B. Kemler took into account the $1.75 million cap in effect when the injury occurred and the settlement by the other defendants and entered judgment for $885,000 in a final order on April 25, 2008.

However, she entered a separate order suspending the effect of the judgment for 14 days. Taking Rule 1:1, which divests the circuit court of jurisdiction 21 days after final judgment, into consideration, that gave the defendant 35 days to get a ruling on the motion.

The orders contained no obvious consideration of Rule 5:9, which requires an appellant to file a notice of appeal with the circuit court within 30 days of final judgment.

The defendant filed his motions arguing principally that two of Talbert’s experts should not have been allowed to testify about the standard of care because their practice was substantially different from his.

Kemler denied the motions in an order entered May 28 with no reference to the April 25 order. The defendant filed his notice of appeal on June 19.

Talbert’s trial attorneys, Steven Gould of Bethesda, Md., and Kenneth M. Berman of Gaithersburg, Md., believed that the defendant had run afoul of Rule 5:5, which says the time for filing a notice of appeal is not extended by other pleadings “unless the final judgment is modified, vacated, or suspended by the trial court pursuant to Rule1:1.”

Under their logic, the defendant only had until June 9 to file the notice of appeal – 30 days from the date the suspending order expired under its own terms.

Gould and Berman retained appellate specialist Frank K. Friedman of Roanoke to make that argument on appeal and believed they had prevailed quickly when the Supreme Court rejected the petition for a writ of error because the notice of appeal was not filed in time.

However, the Supreme Court granted a rehearing, perhaps to remind attorneys of the proper interpretation of the rules. It cited only one case, Wagner v. Shird (VLW 099-6-069), in agreeing with the arguments of the appellee’s attorneys.

“This case just teaches again that you need to re-read these rules and be careful,” Friedman said.

John D. McGavin, an attorney in Fairfax who frequently represents civil defendants, said the better practice is to try to persuade the trial judge to delay entering final judgment until after she has ruled on the post-trial motions.

Judges and prevailing parties often object to such requests, however, so a fallback position may be to ask for as much times as the parties and judges are willing to extend.

Beyond that, he said, “just really watch your deadlines.”

L. Steven Emmert, an appellate specialist in Virginia Beach, said, “I would imagine a number of lawyers would have done what [the defendant’s attorneys] did here. It would be easy for anybody with that kind of case to be just a little bit sloppy.”